The State is a party to the International Covenant on Civil and Political Rights

1. The Working Group on Arbitrary Detention was established by resolution 1991/42
of the Commission on Human Rights, which extended and clarified its mandate
in resolution 1997/50. In accordance with its methods of work, the Working Group
transmitted the above-mentioned communication to the Government.

2. The Working Group regrets that the Government has not transmitted its observations
and information as requested.

3. The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(i) When it manifestly cannot be justified on any legal basis (such as continued
attention after the sentence has been served or despite an applicable amnesty
act)
(category I);
(ii) When the deprivation of liberty is the result of a judgement or sentence
related to the exercise of the rights and freedoms proclaimed in articles 7,
13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights, or,
where States Parties are concerned, in articles 12, 18, 19, 21, 22, 25, 26 and
27 of the International Covenant on Civil and Political Rights (category II);
(iii) When the complete or partial non-observance of international standards
relating to the right to a fair trial is of such gravity as to confer on the
deprivation of liberty, of whatever kind, an arbitrary character (category III).

4. In the light of the allegations made, the Working Group would have welcomed
the Government’s cooperation. The Working Group believes, however, that
it is in a position to give an opinion on the case, based on the following facts.

5. Mr. Tran Van Luong (born Truong Van Lân), former deputy of the Republic
of Viet Nam (South), born in 1940 and normally resident in Cam Ranh, was arrested
on 9 December 1985 on the road between the district of Go Vâp (Ho Chi
Minh Ville) and the church of Notre Dame de Ho Chi Minh Ville by agents of the
Công An (Public Security). He was allegedly arrested without being shown
an arrest warrant or any other decision issued by a public authority.

6. Mr. Tran Van Luong was sentenced to death, together with two bonzes of the
Unified Buddhist Church of Viet Nam, Thich Tue Sy and Thich Tri Sieu, at a trial
on 21 and 22 September 1988, by virtue of article 73 of the Vietnamese Penal
Code (“attempt to overthrow the power of the people”). His death
sentence having been commuted to life imprisonment, he is currently detained
in Camp T5, Thanh Cam, Province of Thanh Hoa.

7. Mr. Tran Van Luong had written pamphlets calling for the respect for human
rights and had been distributing them on the road between the district of Ho
Chi Minh Ville and the church of Notre Dame of Ho Chi Minh Ville. He was arrested
on the spot for that activity and his pamphlets were confiscated. According
to the source, Mr. Tran Van Luong’s arrest and detention are arbitrary,
since he was merely exercising his right to freedom of expression, as enshrined
in article 19 of the International Covenant on Civil and Political Rights, to
which Viet Nam is a party.

8. The source comments that Mr. Tran Van Luong’s trial took place almost
three years after his arrest, which is not in conformity with the “promptly”
rule specified in article 9, paragraph 3, of the International Covenant on Civil
and Political Rights. The three-year delay also infringed article 71 of the
Vietnamese Code of Criminal Procedure, which allows for a delay of four months,
renewable once or twice, between the time of arrest and the time of judgement
in the case of “serious offences”. The source further states that
the trial itself was unfair and did not comply with the guarantees in article
14 of the Covenant: Mr. Tran Van Luong was unable to choose legal assistance;
the trial was held in camera and the judges did not offer sufficient guarantees
of impartiality, especially in a trial described as political which involved
matters of “national security”.

9. The source further recalls that the charge brought against Mr. Tran Van Luong,
which led to his being sentenced to death, was that of “attempting to
overthrow the power of the people”. Mr. Tran Van Luong has always denied
having committed such a crime and the only evidence supporting the charge was
the pamphlets he had distributed. Those pamphlets, however, did no more than
call for the respect of human rights and democratic freedoms and were in no
way an incitement to any form of violence.

10. In the light of the allegations, which have not been denied by the Government
although it had the opportunity to do so, the Working Group finds that Mr. Tran
Van Luong was arrested and detained solely on the grounds that he had written
and distributed pamphlets calling for the respect for human rights, whereas
in so doing he was merely exercising his right to freedom of expression, as
enshrined in article 19 of the Universal Declaration of Human Rights and article
19 of the International Covenant on Civil and Political Rights.

11. The Working Group points out that article 73 of the Penal Code invoked in
the charges against Mr. Tran Van Luong, who was sentenced to death for “attempting
to overthrow the power of the people”, has already given rise to several
comments on the part of the Working Group, both in its report on its visit to
Viet Nam (see E/CN.4/1995/31/Add.4, para. 35) and in the opinions issued following
allegations of arbitrary detention brought against the country.

12. In the Working Group’s opinion, article 73 of the Penal Code, which
is part of Viet Nam’s national security legislation, draws no distinction
as to the use or otherwise of violence or incitement to violence. Moreover,
the wording of the article is so imprecise that it could result in penalties
being imposed not only on persons using violence for political ends, but also
on persons who have merely exercised their legitimate right to freedom of opinion
or expression, as in the case of Mr. Tran Van Luong (see paragraph 35 of the
above-mentioned report).

13. In the Working Group’s opinion, as stated in previous opinions (see
opinion No. 1/1998), in a case where the final judgement of a country’s
court of last resort is in conformity with national legislation but not with
international human rights instruments, that judgement must be considered arbitrary
within the terms of Commission on Human Rights resolution 1997/50.

14. In the light of the foregoing, the Working Group expresses the following
opinion: The detention of Tran Van Luong is arbitrary, since it is contrary
to article 19 of the Universal Declaration of Human Rights and article 19 of
the International Covenant on Civil and Political Rights, and falls within category
II of the categories applicable in the consideration of cases submitted to the
Working Group.

15. Having stated this opinion, the Working Group requests the Government:
(a) To take the necessary steps to remedy the situation, in accordance with
the standards set forth in the International Covenant on Civil and Political
Rights; and
(b) To consider the possibility of amending its legislation to bring it into
line with the relevant international standards it has accepted.